Es v Commission for Children and Young People

[2004] NSWADT 33

CITATION:	ES v Commission for Children and Young People [2004] NSWADT 33
DIVISION:	Community Services Division
PARTIES:	APPLICANT ES RESPONDENT Commission for Children and Young People
FILE NUMBER:	034004
HEARING DATES:	18/03/2003, 1/04/2003
SUBMISSIONS CLOSED:	04/01/2003
DATE OF DECISION:	02/16/2004
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101
REPRESENTATION:	APPLICANT In Person RESPONDENT G Moore (18/03/2003) K Lapthorn (1 April 2003)
ORDERS:	ORDERS MADE: 1 April 2003; The Tribunal declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to the applicant in respect of the offences of indecent assault on a child under 16 years by person in authority, for which he was convicted on 29 May 1992 at Parramatta District Court, on the following conditions:; 1. That this declaration only applies in respect of Mr ES’s employment as a bus driver;; 2. That a copy of this Order be served on Mr John Stott, Chief Executive Officer, New South Wales Transit Authority;; 3. That leave be granted to the applicant to make further application under section 9(8) of the Child Protection (Prohibited Employment) Act 1998 at any time.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 These reasons are provided at the request of the respondent in elaboration of the brief oral reasons delivered by me on 11 April 2003. The respondent advises that a request for written reasons was made within the time frame prescribed by s 89(3) of the Administrative Decisions Tribunal Act 1997. Apparently that request was either not received or overlooked.

2 On 16 January 2003 the applicant, ES made an application seeking a declaration under s 9(1) of the Child Protection Act (Prohibited Employment) Act 1998 (“the Child Protection Act”). At that time ES, was a “prohibited person” as defined by s 5 of the Child Protection Act. In addition an application was made under s 9(6) Child Protection Act for a stay. The stay application was not granted.

3 ES stated that he sought the declaration so he could work as a bus driver with the State Transit Authority (STA). It was common ground that such work could constitute “child related employment” as defined by s 3 of the Child Protection Act. Section 6(1) of the Child Protection Act makes it an offence for a “prohibited person” to apply for, undertake or remain in child related employment.

4 The orders made on 1 April 2003 are set out at paragraph [35] of these reasons. In short they permit the applicant to work as a bus driver and to apply at any time to extend the scope of the orders.

Risk

5 On application of a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply to him or her in respect of a specified offence: s 9(1). Orders made under s 9 may be made subject to conditions: s 9(9).

6 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person’s total criminal record,

(f) such other matters as the tribunal considers relevant.

7 Section 9(7) requires the respondent to be a party to proceedings for an order under s 9 and may make submissions in opposition to, or support of, the making of the order.

Onus of Proof

8 The applicant carries the onus, on the Briginshaw standard, that he is not a risk to children.

9 The meaning of the word “risk”, for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis of the meaning of “risk” in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on:

“…not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.” ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].)

10 Young J held at [42] that “risk” in the context of s 9(4) meant “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child”. That test is now binding on the Tribunal.

11 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the applicant over the risk threshold. He held at [46] that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an applicant “who would otherwise pose some risk to children into an applicant who does not pose a real unacceptable risk to children”.

Index offence (s 9(a), s 9(a)(1), s 9(b), s 9(c), s 9(d))

12 In 1992, at the Parramatta District Court, ES pleaded not guilty to, but was convicted of, two counts of indecent assault on a person under the age of 16 years, being a person under his authority. The Court of Criminal Appeal dismissed his appeal and confirmed, the conviction and sentence.

13 In relation to the first matter, the applicant was sentenced to 100 hours of community service and on the second was placed on a bond to be of good behaviour for two years under the supervision of the Probation Service.

14 The victim was the applicant’s niece who, at the time of the offence, was eight years of age. The offending conduct occurred in 1987 and the victim complained to her mother in 1990. The victim alleged that, while she was staying over at her uncle’s house, on a number of occasions he lay on her bed and touched her on the vagina before she went to sleep.

15 At the time of the offence the applicant was 36 years of age, 28 years older than his niece.

16 The applicant maintains his denial of the offence.

Applicant’s Age (s 9(5)(d1))

17 The applicant was 53 years of age at the time of these proceedings.

Applicant’s total criminal record (s 9(5)(e))

18 The index offence is the applicant’s sole conviction.

Expert Evidence

19 The applicant was interviewed and assessed by psychiatrist, Dr Christopher Lennings at the request of the respondent. Dr Lennings assessed the applicant using STATIC-99 and structured clinical assessment. Employing the former, an actuarial tool used to predict sexual recidivism rates among sex offences, Dr Lennings concluded that the likelihood of his re-offending to be “very low”. This corresponded with the finding of the structured clinical assessment.

20 Dr Lennings opined that the risk that the applicant might re-offend was no greater that the risk presented by the hypothetical “average man” of ES’ age. Dr Lennings recommended that if the applicant were to work in an environment where the opportunity to re-offend was high, for example with children with mental and/or physical disabilities, that it may be advisable that the offence be disclosed to his supervisors and some supervision put in place. In oral evidence Dr Lennings clarified that even in a so-called “high risk” environment the applicant presented no greater risk to children than that presented by the “average man”.

21 Dr Lennings’ assessment was based on the assumption that despite the applicant’s denial he had in fact committed the offences for which he was convicted.

Conduct after the offence

22 The applicant has been married since 1984 and has three daughters, who are now in their late teens. It is common ground that ES has not acted inappropriately with any of his daughters. The applicant has been actively involved in the local school and his daughter’s sporting activities.

23 The respondent made enquiries of ES’ former employers, the Police, the Department of Community Services and the Girl Guides Association. No information adverse to the applicant, bar the index offence, has been revealed through these enquiries.

24 The applicant did not perform the 100 hours community service to which he was sentenced. In cross-examination he explained that he contacted the relevant authorities while the appeal was afoot but was told to get back to them after the appeal had concluded. He said that with the pressures of work and family life it had simply slipped his mind and he failed to renew contact.

25 In an employment application form tendered by the respondent in these proceedings, the Applicant declared he was not a prohibited person. The wrong date of birth was provided in the form and ES’ middle name was spelt incorrectly. ES’ evidence, corroborated by his wife, was she had completed the form but t he had signed it.

Findings and Conclusions

26 The key issue to be determined is whether the applicant poses a real and material risk to the safety of children and, if so, whether that risk can be reduced to one of no material significance by the imposition of appropriate conditions.

27 The applicant sought an unconditional declaration under s 9(1) of the Child Protection Act. If granted this would allow him to work without restriction in child related employment. The respondent opposed that application but did not oppose a conditional declaration that would permit ES to work as a bus driver and apply in the future to have the terms of any s 9(1) declaration extended.

28 One of the difficulties in making an assessment of risk in this matter is that the applicant continues to maintain his innocence in respect of the index offence. He has not undertaken counselling (although it is to be noted that he undertook to do so to the sentencing court). It follows that he has not gained any insight into what caused him to act as he did. It may of course be, as the applicant has maintained all along, and his wife firmly believes, that he did not assault his young niece. On the material before me, however, there is no evidentiary basis on which I could make such finding. He has been found guilty of the assault and that decision was confirmed on appeal. No new evidence concerning the charges has been adduced in these proceedings by the applicant. This tribunal is effectively bound by the decision reached by the District Court.

29 In the applicant’s favour is the fact that, since the offence, there has apparently been no complaint made about his conduct towards children, and that during that time he has worked in a voluntary and paid capacity, in positions which have bought him into close contact with a variety of children. He enjoys a happy and stable family life. Relevantly the index offence occurred close to twenty years ago and remains the sole blemish on his criminal record.

30 Against this I note that the index offence involved a very young child and represented a most serious breach of trust. At the time the applicant was a mature adult. I am also troubled by a number of incidents brought to light in these proceedings, which indicate a lack of candour on the part of the applicant. No plausible explanation was offered as to why he proffered incorrect information in his employment application. While I accept that he may have misunderstood his status as a prohibited person, no plausible explanation was offered as to why he furnished an incorrect date of birth and incorrectly spelt his middle name. In my view the only inference that can be drawn is that he knowingly misled his prospective employer so that the details of his criminal history would not be disclosed. I am also troubled by the fact that the applicant has relied on an administrative oversight on the part of the authorities to avoid the court imposed penalty for the index offence.

31 The Child Protection Act does not require a prohibited person to establish that they are of good character before a declaration under s 9(1) may be granted. An applicant need only establish on the Briginshaw standard that he or she does not pose a risk to the safety of children. That he or she has been found to be dishonest and/or has a conviction for arson, robbery or insider trading, will only be relevant if it goes to the issue of risk to children.

32 While I accept that the propensity of the applicant to re-offend is at the low end of the scale, I cannot be comfortably satisfied that he presents no material risk to children in all employment environments. While Dr Lennings’ expert and carefully considered opinion that the applicant presents no greater risk to children than that presented by the average man deserves great weight, I remain concerned with the index offence itself and the fact that the applicant’s evidence concerning his conduct since the incident must, to an extent at least, be questioned given his proven lack of candour. (I note, on the other hand, that the applicant’s account of his good behaviour since the offence has in large been corroborated by the evidence given by his family and the character evidence before the Tribunal.)

33 I am comfortably satisfied however that in the position of bus driver, the applicant would not pose any real and material risk to the safety of children. That occupation would bring him into limited unsupervised contact with children. It is improbable that he would have unsupervised contact with the type of vulnerable children that Dr Lennings advises might warrant the imposition of conditions.

34 In my view the form of orders proposed by the respondent achieves a proper balances between the interests of children and the applicant’s right to work. They also provide that if the applicant is not appointed or stops working as a bus driver he can apply at any time to vary the terms of the order. While not a question directly before me, I am comfortably satisfied on the evidence that the applicant does not represent a material risk to children in continuing his voluntary work with his daughters’ school and their various extra curricular activities.

Orders

The Tribunal declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to the applicant in respect of the offences of indecent assault on a child under 16 years by person in authority, for which he was convicted on 29 May 1992 at Parramatta District Court, on the following conditions:

1. That this declaration only applies in respect of Mr ES’s employment as a bus driver;

2. That a copy of this Order be served on Mr John Stott, Chief Executive Officer, New South Wales Transit Authority;

3. That leave be granted to the applicant to make further application under section 9(8) of the Child Protection (Prohibited Employment) Act 1998 at any time.